Why I oppose Sotomayor's Nomination

[Subterfuge]

During the recent Senate confirmation hearings, Sen. Tom Coburn (R-Okla.) asked Supreme Court nominee Sonia Sotomayor, whether citizens have a right to self-defense. Justice Sotomayor told the Senate Judiciary Committee, “I don’t know.”

Senator Coburn then asked, “As a citizen of this country, do you believe innately in my ability to have self-defense of myself – personal self-defense? Do I have a right to personal self-defense?”

Justice Sotomayor replied, “I’m trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can’t think of one. I could be wrong, but I can’t think of one.”

Senator Coburn did not ask about a constitutional right, Judge Sotomayor added the qualifier of “constitutional” to her response to avoid having to admit that citizens do have the right to self-defense.

The right to self-defense is an inalienable right. It’s one of those rights the Founders spoke of that go hand and hand with life, liberty and the pursuit of happiness.

Suppose Judge Sotomayor was asked, "Do citizens of the United States of America have the right to life, liberty and the pursuit of happiness?

And Judge Sotomayor replied, “I’m trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to (life, liberty and the pursuit of happiness)? And I can’t think of one. I could be wrong, but I can’t think of one.”

From her own words, it is glaringly obvious that Sonia Sotomayor embraces a political orthodoxy that adheres to the notion that people’s rights emanate from the government they are subject to. Such a belief is contrary, almost to a degree of blaspheme, to the founding principles of America .

America was founded under the principle of individual freedom and liberty, and that we are endowed with natural, or inalienable, rights. Not that we are allowed our rights by some perceived benevolence of government. Just the opposite - as Thomas Jefferson wrote in our Declaration of Independence, our government was instituted to secure our rights.

For a prospective Supreme Court Justice to espouse a philosophy completely contrary to the philosophy of America 's founding, he or she should be immediately disqualified from sitting on the bench of America 's highest court.

[Really_Not_All_That_Bright]

@Subterfuge

For a prospective Supreme Court Justice to espouse a philosophy completely contrary to the philosophy of America 's founding, he or she should be immediately disqualified from sitting on the bench of America 's highest court.

I don’t necessarily disagree with you, but I will point out that marginalizing someone who does (disagree with you) is at least as contrary to the philosophy of the founders.

[RickJay]

@Subterfuge

The right to self-defense is an inalienable right. It’s one of those rights the Founders spoke of that go hand and hand with life, liberty and the pursuit of happiness.

Suppose Judge Sotomayor was asked, "Do citizens of the United States of America have the right to life, liberty and the pursuit of happiness?

But the Constitution protects those rights. The Fourth Amendment protects your person and your possessions. Various parts of the Constitution protect your liberty. If the Founders had intended for “self defense” to be s specifically mentioned right, they forgot to put it in there.

“Self defense” is not something to which you have a “right” enumerated in the Constitution. Furthermore, it strikes me as being a silly thing to claim a right to. Self defense is a legal justification for certain acts for the sake of protecting OTHER rights - primarily your personal safety and that of others. You have a right to your life, your person, your things, your freedom, equal treatment by your government, your vote; the other legal machinations aren’t rights, they’re methods to protect your rights. The legal concept behind self defense is not that you have an inalienable right to defend yourself against an assailant, but that you have an inalienable right to the things the assailant would take away - your life, your health, your possessions - and legally are entitled to take actions to prevent yourself from becoming bereft of those things, providing your act is proportional to the threat.

Let me illustrate my point with an obvious example; if you are attacked by an assailant, I am justified in using reasonable force to stop the assailant. If a madman with a knife tries to kill you, and I shoot him dead, that’s legally justifiable. But it’s not self defense; I was defending you, not me. So do I have the right to “other-defense?” Should Sotomayor publicly declare you have the inalienable right to other-people-defense? It’s every bit as legal.

Every criminal code in the civilized world allows for the justification of self defense. What do you think would be accomplished by enumerating it in the Constitution and making it a “right”?

[Rhythmdvl]

I too think she should have answered what she thought personally, because then her confirmation could have been defeated because she would be bringing non-Constitutional matters to the bench. Great ploy!

[Voyager]

@Subterfuge

The right to self-defense is an inalienable right. It’s one of those rights the Founders spoke of that go hand and hand with life, liberty and the pursuit of happiness.

Suppose Judge Sotomayor was asked, "Do citizens of the United States of America have the right to life, liberty and the pursuit of happiness?

And Judge Sotomayor replied, “I’m trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to (life, liberty and the pursuit of happiness)? And I can’t think of one. I could be wrong, but I can’t think of one.”

Life, liberty, and the pursuit of happiness are in the Declaration of Independence, not the Constitution. They are not constitutional rights. I’m sure that you can cite a Supreme Court case, or a part of the constitution, making self defense such a right.

On one hand you say she shouldn’t be confirmed because she is not going by what the Founders said in a different context, on the other you are making up rights willy nilly.

[Ravenman]

First of all, let’s be clear. Coburn was asking about guns. His comments immediately prior to and shortly after the section quoted in the OP was about the Second Amendment. So it seems to me that Sotomayor was answering in reference to the Second Amendment, not as general principles.

Furthermore, she went on to talk about law and self-defense:

SOTOMAYOR: Exactly. That’s exactly right, but let me try to address what you’re saying in the context that I can, OK, which is what I have experience with, all right, which is New York criminal law, because I was a former prosecutor. And I’m talking in very broad terms.

But, under New York law, if you’re being threatened with eminent death or very serious injury, you can use force to repel that, and that would be legal. The question that would come up, and does come up before juries and judges, is how eminent is the threat. If the threat was in this room, “I’m going to come get you,” and you go home and get – or I go home.

I don’t want to suggest I am, by the way. Please, I’m not – I don’t want anybody to misunderstand what I’m trying to say.

(LAUGHTER)

If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend…

COBURN: You’ll have lots of ‘splainin’ to do.

SOTOMAYOR: I’d be in a lot of trouble then.

But I couldn’t do that under a definition of self-defense. And so, that’s what I was trying to explain in terms of why, in looking at this as a judge, I’m thinking about how that question comes up and how the answer can differ so radically, given the hypothetical facts before you.

So saying that she offered no answer whatsoever beyond “I don’t know” isn’t accurate.

Finally, your allegation that the Declaration of Independence gives us some type of enforceable right to pursue life, liberty, and happiness is wrong. The Declaration of Independence had to do with telling Britain to shove off, but doesn’t have any standing in a courtroom. It isn’t law. It is a proclamation.

[Lightnin]

@Rhythmdvl

I too think she should have answered what she thought personally, because then her confirmation could have been defeated because she would be bringing non-Constitutional matters to the bench. Great ploy!

Bingo. It’s an invalid, and dishonest, question to ask of a Supreme Court Nominee. It’s nothing more than a gotcha-ya.

Knowing this, is the OP willing to change his/her opinion of Sotomayor? Since that’s apparently the only reason **Subterfuge **is against Sotomayor’s nomination.

[Really_Not_All_That_Bright]

Ravenman, where did that transcript come from, and why did the transcriptionist keep misspelling imminent?

[Gyrate]

Wait a sec…

Did Coburn **actually **say “You’ll have lots of ‘splainin’ to do”? Seriously?

Classy. :smack:

[Marley23]

Here’s a transcript from the hearing, including the exchange between Coburn and Sotomayor.

It’s largely a no-win question, so she chose not to answer it. I wish the political climate around Supreme Court nominees were such that they could answer questions about their opinions and not just stick to reciting precedent.

There’s plainly nothing about self defense in the Constitution. It’s true that the Second Amendment provides for the right to a well regulated militia and that people who prefer a broad interpretation of the Second Amendment often speak of it in terms of self defense. That does not mean the Second Amendment guarantees a right to self defense.

I think most of us would agree that people are entitled to protect themselves when someone tries to harm them. But what does self defense mean and in what situations is it permitted? That’s rather complicated and Sotomayor appears to address it that way.

[Marley23]

As to the other comment:

Sotomayor: If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend…

COBURN: You’ll have lots of ‘splainin’ to do.

SOTOMAYOR: I’d be in a lot of trouble then.

[Polycarp]

@RickJay

But the Constitution protects those rights. The Fourth Amendment protects your person and your possessions. Various parts of the Constitution protect your liberty. If the Founders had intended for “self defense” to be s specifically mentioned right, they forgot to put it in there.

“Self defense” is not something to which you have a “right” enumerated in the Constitution. Furthermore, it strikes me as being a silly thing to claim a right to. Self defense is a legal justification for certain acts for the sake of protecting OTHER rights - primarily your personal safety and that of others. You have a right to your life, your person, your things, your freedom, equal treatment by your government, your vote; the other legal machinations aren’t rights, they’re methods to protect your rights. The legal concept behind self defense is not that you have an inalienable right to defend yourself against an assailant, but that you have an inalienable right to the things the assailant would take away - your life, your health, your possessions - and legally are entitled to take actions to prevent yourself from becoming bereft of those things, providing your act is proportional to the threat.

Let me illustrate my point with an obvious example; if you are attacked by an assailant, I am justified in using reasonable force to stop the assailant. If a madman with a knife tries to kill you, and I shoot him dead, that’s legally justifiable. But it’s not self defense; I was defending you, not me. So do I have the right to “other-defense?” Should Sotomayor publicly declare you have the inalienable right to other-people-defense? It’s every bit as legal.

Every criminal code in the civilized world allows for the justification of self defense. What do you think would be accomplished by enumerating it in the Constitution and making it a “right”?

Nicely said. One quibble: it may be a “right” in the sense that equal employment opportunity is a right, though not a constitutionally guaranteed one. Also, it’s arguable that “due process of law” would include self-defense as a justification for an act – and AFAIK no such case has come before SCOTUS – which was Sotomeyer’s point; she cannot prejudge such cases. Most states limit self-defense to “proportionate force” – you cannot shoot someone attacking you bare-hands with a bazooka and claim self-defense in ordinary circumstances, for example. What if SCOTUS were asked to determine if self-defense is a part of the Fifth or Fourteenth Amendment guarantee of due process of law? And in a case that involves marginally disproportionate force?

[Bricker]

Her answer was perfectly acceptable.

I don’t agree that the question was a “gotcha,” though. I might have asked her:

OK, let’s assume that the Pacifist Buddhist Party sweeps the state legislature in the upcoming election, and they pass a law eliminating the affirmative defense of ‘self-defense.’ The following month, someone threatened with imminent deadly harm responds to the threat by fatally wounding his assailant, and is convicted of manslaughter. The facts are uncontroverted that the accused was in reasonable fear of his own life before acting. May the accused challenge his conviction on Constitutional grounds?

[Rhythmdvl]

@Bricker

I don’t agree that the question was a “gotcha,” though.

Between rational persons, perhaps. But in the political theater that is confirmation hearings? I don’t believe any question put to her (or to Roberts or Alito or …) wasn’t carefully crafted for maximum impact on the questioners’ party.

How can I phrase the question such that I come across as a strong advocate for my party’s platform?

How can I phrase my question to paint him or her into a corner so that they are all but forced to give an answer that will show cause my political base to cringe?
… and so on. I don’t doubt that there are intellectually honest senators who want to know more about a nominee. But I believe those senators have already done the background reading and research to all but answer those questions, and recognize that this forum isn’t conducive to digging deeper.

Now pardon me while I finish off my cynicalcakes – the jaded sauce is getting cold.

[kaylasdad99]

I suspect that the actual reason the OP opposes Sotomayor’s nomination is because it was put forward by a Democrat.

Pretty much the same reasoning I had for opposing the nominations put forward by Messrs. Nixon, Reagan, Bush (the Elder), and Bush (the lesses), if we’re being candid.

[Diogenes_the_Cynic]

Senator Coburn did not ask about a constitutional right, Judge Sotomayor added the qualifier of “constitutional” to her response to avoid having to admit that citizens do have the right to self-defense.

From the perspctive of a judge, the word has no other relevant meaning. Her personal opinion about what rights people SHOULD have is irrelevant because she can’t make rulings based on personal opinions. These hearings always involve lot of dancing with Senators trying to get nominees to reveal personal opinions, and the nominee trying to stick to the dryest, technical answers possible.

You personal opinion that self-defense is an “inalienable” right has no explicit weight of Constitutional law behind it, and her views of Constitutional rights are what matters, not her personal opinions.

The thing is, if there is no explicit right to self-defense US Constitution, and she still feels there SHOULD be, what is she supposed to do, ignore the Constitution and replace it with her personl opinion? Isn’t there a word for that kind of judge?

[RickJay]

@Polycarp

Also, it’s arguable that “due process of law” would include self-defense as a justification for an act – and AFAIK no such case has come before SCOTUS – which was Sotomeyer’s point; she cannot prejudge such cases. Most states limit self-defense to “proportionate force” – you cannot shoot someone attacking you bare-hands with a bazooka and claim self-defense in ordinary circumstances, for example. What if SCOTUS were asked to determine if self-defense is a part of the Fifth or Fourteenth Amendment guarantee of due process of law? And in a case that involves marginally disproportionate force?

1. Surely the common law - we’re talking about centuries of precedent in a thousand courts - factors in here, irrespective of whether or not there has been an SC ruling?

2. To the last question, I think this has to dovetail with Bricker’s hypothetical of a legislature that bans self-defense, uh, defenses. You’re asking the same thing in different ways.

THAT is, I think, a very interesting question, and if I may offer my opinion as a foreigner with no legal training, I think the petitioner would have a hell of a good point. The spirit and purpose of the relevant amendments is clearly the protection of a person’s life and liberty, and so a legislature that passed a law that de facto takes away life and liberty could be reasonably said to be in violation of the Constitution in a number of ways. I’d at least argue that the centuries upon centuries of common law precedent would make an anti-self-defense law inconsistent with the Ninth Amendment.

[Kimmy_Gibbler]

@Bricker

Her answer was perfectly acceptable.

I don’t agree that the question was a “gotcha,” though. I might have asked her:

OK, let’s assume that the Pacifist Buddhist Party sweeps the state legislature in the upcoming election, and they pass a law eliminating the affirmative defense of ‘self-defense.’ The following month, someone threatened with imminent deadly harm responds to the threat by fatally wounding his assailant, and is convicted of manslaughter. The facts are uncontroverted that the accused was in reasonable fear of his own life before acting. May the accused challenge his conviction on Constitutional grounds?

Come on, Bricker, admit it. You’d ask that question because you understand how our legal system works and how questions come before the Supreme Court. And admit that Senator Coburn’s question is shockingly amateurish and betrays a troubling lack of understanding of the judicial branch, especially from someone who gets to vet Supreme Court Justices.

I don’t think you have to be a lawyer to be on the Senate Judiciary Committee, but I do think you have to know enough to know that judges don’t sit around deciding “Question Presented: The Right to Self-Defense – Boo or Hurrah?” What Sotomayor’s response was doing was trying to communicate to this fact to the senator without saying, “Gosh, Senator Coburn, you’re really stupid!”

I don’t think it was a gotcha question, I really think Coburn doesn’t know what he’s doing.

[Pleonast]

What I wonder is why people oppose (or support) her nomination to the Supreme Court? Her nomination is a fait accompli, already completed. Perhaps, the opposition (or support) is actually for her confirmation?

Personally, I think it’s silly for the Senators (and everyone else) to try to ask her opinion on hypothetical cases. American courts do not give advisory opinions. It’s proper for a judge to refuse to do something similar in a public forum. If the Senate wants to know how she decides cases, then they should consult her record. If the record is insufficient, then refuse consent on that ground.

[Ravenman]

@Bricker

I don’t agree that the question was a “gotcha,” though. I might have asked her:

OK, let’s assume that the Pacifist Buddhist Party sweeps the state legislature in the upcoming election, and they pass a law eliminating the affirmative defense of ‘self-defense.’ The following month, someone threatened with imminent deadly harm responds to the threat by fatally wounding his assailant, and is convicted of manslaughter. The facts are uncontroverted that the accused was in reasonable fear of his own life before acting. May the accused challenge his conviction on Constitutional grounds?

If I happened to be nominated to the Supreme Court, even though I am not a lawyer, I’m pretty sure I would answer this question with, “It depends.”

Do I win your vote, Senator?